OSHA Circumvents Rulemaking By Implementing 'Recommended' Air Contaminant Exposure Limits

Recently, OSHA launched a high-profile effort to address its permissible exposure levels (PELs) for chemicals in the workplace. OSHA last attempted to update its PELs — which are over four decades old — via a rulemaking in 1989. But that effort failed after the Eleventh Circuit struck it down. This time, rather than initiating a rulemaking to lawfully update its standards, OSHA published "recommended" exposure levels on its website which are more stringent than their corresponding PELs.

OSHA's updated, recommended exposure levels are based on "occupational exposure levels" (OELs) set by the National Institute for Occupational Safety and Health (NIOSH), the American Conference of Governmental Industrial Hygienists (ACGIH), and California OSHA.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, has sent ambiguous signals to stakeholders about OSHA's intentions for the recommended OELs. On the one hand, Dr. Michaels has advised stakeholders that the recommended OELs are a "tool[] that we're putting out, not [a] new regulation[]." On the other hand, Dr. Michaels has repeatedly equivocated over whether OSHA will use the recommended OELs as a basis for "general duty" clause citations.

Actions speak louder than equivocations. In September of 2013, OSHA issued a general duty clause citation against a Wisconsin employer alleging its employees were exposed to styrene at 65.2 ppm which exceeds the corresponding OEL of 50 ppm. The PEL for styrene (provided in 29 C.F.R. § 1910.1000 Table Z-2) is 100 ppm. In effect, the Wisconsin employer complied with the standard but was still penalized for failing to adhere to the OEL, which Dr. Michaels has called a "tool," not a "regulation."

Publishing the OELs and the recent citation in Wisconsin raise questions about whether employers can continue to rely on OSHA's mandatory PELs or whether they must comply with the more stringent OELs. From a legal perspective, the answer to this question may revolve around a 1987 opinion by the United States Court of Appeals for the District of Columbia Circuit entitled International Union UAW v. General Dynamics Land Systems Division. In General Dynamics, the D.C. Circuit considered whether OSHA can use the general duty clause of the OSH Act (Section 5(a)(1)) which broadly requires all employers to provide its employees with "employment and places of employment free from recognized hazards..." to cite an employer even though the employer has...